Senators undeterred in efforts to use tech policy to extend broadcast censorship

In late April, the FCC released a report on TV violence, which concluded that “there is strong evidence that exposure to violence in the media can increase aggressive behavior in children” and that Congress needed to do more to “protect children from excessive violence” on TV. Recently, a number of legislators have been hard at work trying to ensure that “protecting children from excessive violence” on TV means extending government control of the airwaves and implementing increased broadcast censorship.

The House subcommittee on telecommunications and the Internet held a hearing in June to examine violence, smoking, product placement and junk-food advertising on TV and what should be done about these issues. Adam Thierer, a senior fellow at the Progress and Freedom Foundation’s Center for Digital Media and Freedom, testified that his organization studied parental controls and determined that “the market today can help parents better manage media content, whether it be broadcast television, cable or satellite TV, music devices, mobile phones, video game consoles, the Internet, or social networking sites.” Today’s parents have more options than ever before when it comes to regulating and monitoring what their kids see on screens big and small. Thierer believes these tools, combined with some good old-fashioned “household media rules” and “the power of the purse,” are sufficient for controlling kids’ exposure to unsavory things.

But apparently some legislators don’t believe this enough, and don’t trust parents to make decisions for them and their children based on their own values and tastes. At another hearing a few days later, Senator John Rockefeller even said that parental responsibility does not work. Essentially, Rockefeller believes that parents are not able to do their jobs, or at least not as well as he and his fellow congressmen and women can.

“Unless you can show that parental responsibility works,” he said, “I think we have to try something else.”

“I reject the notion that television merely reflects our society, but rather … can and should be a positive force,” Rockefeller added. (and obviously, it is Rockefeller and other politicians’ prerogative to decide just what and what does not constitute a “positive force”). “Parents do not want more tools,” he argued, “they want the content off the air.” Theirer writes at PFF:

We know that it cannot possibly be the case, as the Senator suggests, that all parents “just want the content off the air.” After all, I’m a parent of two young kids and some of the things that Sen. Rockefeller wants censored are my favorite shows and they are among the most popular shows on television today. (ex: CSI, The Shield, Rescue Me).

Tens of millions of American parents like my wife and me tune into these shows each week and enjoy them. Are they fit for kids? Of course not, and like most other parents, my wife and I take steps to ensure our kids cannot watch them. But I think the millions of American parents who enjoy those programs would be deeply insulted by Senator Rockefeller’s suggestion that we all “just want the content off the air.” That’s a decision for us to make for ourselves, Senator.

Finally, not every home in America has kids in residence but the Senator wants to impose regulations that would treat everyone as if they were children. The majority of U.S. households, in fact, are made up entirely of adults. According to the Census Bureau, only one-third of U.S. households include children under the age of 18. Under Sen. Rockefeller’s logic, however, we should be treating all homes as if children were present and regulating television so that it is only fit for a child. I don’t know about the rest of you parents out there, but I can’t live on just Sesame Street and Mr. Rogers alone! Sen. Rockefeller is certainly free to get on his moral high-horse and preach to us about his vision for television: highly sanitized and apparently full of only documentaries and nature programs (just make sure none of them are about war or animals fighting each other to the death!) But it is quite another thing to mandate that vision from above using the heavy hand of government regulation as the Senator is threatening.”

Just last week, however, Sen. Sam Brownback — the one one who helped get the FCC’s indecency fines increased 10-fold (jacking up maximum fines from $32,500 per incident to $325,000 per incident) — proposed two amendments to a general government appropriations bill that would further regulate TV broadcast content. These amendments, Brownback said, would “continue support for the FCC to fine broadcasters who air indecent, profane or obscene content” and “fine broadcasters for airing excessively violent content during the hours when children are most likely to be in the audience.”

Thierer has a great post on this whole issue over at the Technology Liberation Front.

I find it more than a little troubling that Senator Brownback is attempting to legislate on sensitive constitutional matters like this through the appropriations process. It seems to me that any measure that cuts to the core of an industry’s First Amendment rights should not be snuck into a bloated spending measure in order to get it passed. But hey, who cares about the Constitution… this is about “protecting children”! Right? Well, actually, it wouldn’t do that either.”

Brownback’s amendments were proposed in response to a June decision by the 2nd Circuit Court of Appeals which ruled that the FCC’s regulating on “fleeting expletives” was “a departure from positions previously taken by the agency and relied on by the broadcast industry” and “arbitrary and capricious under the Administrative Procedure Act.”

One of Brownback’s amendments would have overturned the 2nd circuit decision by amending the Communications Act to state that “the FCC shall maintain a policy that indecent or profane material may include a single word or image.” The other amendment would prohibit broadcast station licensees from “broadcasting excessively violent video programming during hours when a substantial number of children are reasonably likely to be in the audience.” “Excessively violent video programming” is defined as “a depiction or description of physical force against an animate being that, in context, is patently offensive as measured by contemporary community standards for broadcast medium”

Could there be anything vaguer than “physical force against an animate being” as defined by “contemporary community standards”? I have no idea what that means but apparently we’ll find out once 5 unelected bureaucrats down at the FCC get to play national nanny and decide for all the rest of us. But I think it’s safe to say that Sen. Brownback’s definition would cover most war movies, many nature documentaries, and even a lot of Shakespeare plays. It’s tough for me to think of a Shakespeare tragedy that doesn’t include “a depiction or description of physical force against an animate being.” And I can’t wait to see how the FCC wiggles its way out of petitions to apply that regulatory standard to football, hockey, boxing and wrestling. Unless the agency wants a public mutiny on its hands, they must know they can’t relegate those sporting events to the wee hours of the night “when a substantial number of children [aren’t] reasonably likely to be in the audience.”

Obviously, Thierer is being a bit dramatic here to emphasize his point, but I certainly agree with the sentiment behind it. Parents already have many technological controls to regulate kids’ TV consumption. Nonetheless, children can easily turn many other places than broadcast TV (the Internet, cable, etc.) for offensive content. So the proposed amendments will likely do very little to “protect the children,” while further encroaching on the first amendment rights of broadcasters and limiting the options available to all grown-up viewers. It’s an attempt to legislate morality through tech policy. And that’s not cool.

Brownback’s amendments ultimately failed to make it into the appropriations bill, but Sen. Daniel Inouye “promised the Senate Commerce Committee, over which he presides, would take up identical legislation as soon as next week,” Variety reported last Thursday. That same day, Rockefeller introduced a separate bill that would overturn the 2nd Circuit’s “fleeting profanity” ruling, and Rockefeller is expected to introduce a separate TV violence bill soon.